BES & Beu v Department of Family and Community Services

[2014] NSWCATAD 65

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BES & BEU v Department of Family and Community Services [2014] NSWCATAD 65

Hearing dates:

3 March 2014

Decision date:

03 March 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Principal Member
J Goodman-Delahunty, General Member
Dr M Field, General Member

Decision:

1. Decision of the respondent is affirmed.

2. Pursuant to subs 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1998, the Tribunal recommends:

(a) The respondent action, as a matter of urgency, each of the recommendations made by Ms Kay Langfield, in her report dated 24 February 2014, and

(b) Any assessment about the child B's attachments is made by a suitably qualified professional who has had no previous involvement in this matter.

Catchwords:

Administrative review - review of decision to remove from an authorised carer the responsibility for the daily care and control of a child - whether the decision is the correct and preferred decision at the time of review.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Children and Young Persons (Care and Protection) Act 1998
Community Services (Complaints, Reviews and Monitoring) Act 1993

Category:

Principal judgment

Parties:

BES & BEU (applicants)
Department of Family and Community Services

Representation:

W Sear (Applicants)
J Smith (Respondent)

File Number(s):

1410051

Publication restriction:

S 65 of the Civil and Administrative Tribunal Act 2013 - the names of the applicants and the children the subject of the application are not to be published without the leave of the Tribunal

reasons for decision

Introduction

1. The applicants, BES (Mr B) and BEU (Mrs B), are authorised carers for out-of-home care under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). In March 2010, the respondent, the Department of Family and Community Services, Community Services, placed two children, a girl now aged 8 and a boy now aged 7 into the care of the applicants. The children are siblings and at the time they were placed into the applicants' day-to-day care they were already displaying some behaviour issues.

1. On 27 December 2013, the boy (child B) was placed with a respite carer that had been arranged by the respondent. He was due to return to the applicants, on 21 January 2014.

1. On 16 January 2014, the applicants met with Mr Kevin Douglass (the respondent's acting manager client services), Ms Cindy Blackett (the respondent's caseworker responsible for managing the placement of the children), Ms Susan Hart and Mrs Kirstie Steele (the childrens' caseworker) at the respondent's local Community Services Centre (CSC). The purpose of the meeting was to discuss, with the applicants, issues regarding the children's placement, in particular the placement of child B. The record of the meeting states that the applicants acknowledged that child B's behaviour had been challenging but they also felt that since he had been taken off Lovan his behaviour had improved and they wanted a chance to 'keep our boy and get things together for him.' However, not long after Ms Blackett informed the applicants that child B's behaviour had improved during the three weeks while on respite and that his respite would be continuing until such time as a new permanent placement could be found, the applicants left the meeting.

1. On 21 January 2014, the day on which child B was due to return to the applicant's care, the respondent determined that:

'... after careful consideration of [child B's] care needs, Family and community Services has formed the view that [child B's] placement with your family can not be sustained in the long term without placing all members of the household at risk of serious violence.'

The applicants were provided with written notice of the respondent's decision together with its reasons for that decision.

1. On 30 January 2014, the applicants made an application for external review of the decision of the respondent to remove child B from their care. The applicants also made an application for a stay of the decision of the respondent pending determination of their application.

1. The applicant's stay application was heard on 6 February 2014. The Tribunal refused the applicant's application for a stay and made orders for the filing and serving of evidence. By consent, the application was set down for hearing, on 3 March 2014. By consent, the Tribunal also made an order, under paragraph 55(4)(b) of the Administrative Decisions Review Act 1997 (the Administrative Review Act), as the applicants had not made an application for internal review: see subs 55(3) of the Administrative Review Act. A review report by an independent psychologist was requested. Ms Kay Langfield, a registered psychologist, submitted a report dated February 24 2014.

1. The applicant's application was heard on 3 March 2014. At the conclusion of the hearing the Tribunal made an order affirming the decision of the respondent. The Tribunal also made a number of recommendations under subs 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (the Complaints Review and Monitoring Act). In affirming the decision of the respondent, the Tribunal also gave some very brief reasons for the decision and the parties were informed of their right to seek written reasons for decision after being informed by the Registry of the orders made that day.

1. A written request for reasons for decision was subsequently made. These are the Tribunal's reasons for decision, which incorporate the brief reasons for decision given at the hearing.

Relevant Legislative Scheme

1. There was no dispute that the Tribunal had jurisdiction to hear and determine the applicant's application: see s 30 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), s 9 of the Administrative Review Act, para 28(1)(a) of the Complaints Review and Monitoring Act and para 245(1)(c) of the Children and Young Person (Care and Protection) Act 1998 (Care and Protection Act).

1. As explained to the applicants at the hearing, the role of the Tribunal in determining their application was to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable law: subs 63(1) of the Administrative Review Act. That is, the Tribunal sits in the shoes of the respondent and determines the matter afresh as at the date of the hearing.

1. Chapter 8 of the Care and Protection Act makes provision for out-of-home care. The respondent is a 'designated agency' under s 139 in Part 1 of that Chapter. Section 140 provides that the 'designated agency' that places a child or young person in the out-of-home care of an authorised carer has a responsibility to supervise the placement. The note to that section sets out some of the functions, powers and responsibilities of the 'designated agency' in supervising an out-of-home care placement.

1. Sections 8, 9 and 10 of the Care and Protection Act set out a number of objects and principles, which are to give guidance and direction in the administration of that Act. These provisions are in the following terms:

8 What are the objects of this Act?

The objects of this Act are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

9 Principles for administration of Act

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

10 The principle of participation

(1) To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Director-General is responsible for providing the child or young person with the following:

(a) adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department's intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms,

(b) the opportunity to express his or her views freely, according to his or her abilities,

(c) any assistance that is necessary for the child or young person to express those views,

(d) information as to how his or her views will be recorded and taken into account,

(e) information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision,

(f) an opportunity to respond to a decision made under this Act concerning the child or young person.

(2) In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person.

(3) Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following:

(a) plans for emergency or ongoing care, including placement,

(b) the development of care plans concerning the child or young person,

(c) Children's Court applications concerning the child or young person,

(d) reviews of care plans concerning the child or young person,

(e) provision of counselling or treatment services,

(f) contact with family or others connected with the child or young person.

The Evidence

1. In support of their application the applicants each filed and served an affidavit. The applicants have three children of their own: two daughters, aged 14 and 11 and a son aged 19. They live in a five-bedroom house on a half an acre block of land, with farmland across the road. Mr B also filed and served a further affidavit in response to the evidence filed by the respondent. Mr B and Mrs B both gave oral evidence at the hearing and were cross-examined by Ms J Smith, solicitor, appearing on behalf of the respondent.

1. The respondent relied on an affidavit sworn by Ms Cindy Blackett and an affidavit of Mr John Shepherd, a child psychologist. Ms Blackett and Mr Shepherd also gave oral evidence at the hearing and were cross-examined by Mr W Sear, solicitor, appearing on behalf of the applicants. The respondent also relied on the documents it had filed and served pursuant to s 58 of the Administrative Review Act.

1. In many respects the sequence of events leading to child B's removal from the applicant's care is not disputed. So far as they are relevant to this application they were as follows:

(1)   In September 2011, Mr Shepherd assessed child B, as part of his transition into infant's school. In making his assessment, the respondent asked Mr Shepherd to advise whether child B had autism and whether this was a possible explanation for his behavioural issues. Mr Shepherd concluded that child B's presentation was not indicative of a child presenting with an underlying pervasive developmental disorder, including autism.

(2)   During 2012, Mrs B and the local school principal made a number of reports, to the local CSC, about child B's increasingly aggressive and disruptive behaviour at home and at his school. Both children attended the local rural two-teacher school. Child B's behaviour resulted in him being suspended from attending school on a number of occasions.

(3)   In March 2012, child B was prescribed Ritalin, by Acting Professor John Preddy, consultant paediatrician. The applicants were resistant to the commencement of this medication. However, on instructions from Ms Blackett they complied in giving him the medication. In May 2012, Dr Yvette Vella, paediatrician, withdrew child B from the Ritalin and prescribed Lovan. During this month, the respondent also referred child B to the Child and Adolescent Mental Health Service (CAMHS) for assessment on medication and management. Child B was also prescribed an anti-depressant to assist with his anxiety.

(4)   During 2012, Ms Blackett approached the respondent department's rural and remote psychological team, to assist with decision-making about the children. Ms Blackett said she sought assistance as her local CSC did not have available to it facilities that were needed to assist with decision-making in regard to the childrens' placement.

(5)   During 2012, to assist Mrs B the respondent arranged for her to undertake the Reparative Parenting Program, which Mrs B acknowledged in her oral evidence to have been very helpful.

(6)   In July 2012, being concerned about the lack of facilities available to the local CSC to support the needs of the placement, Ms Blackett requested that the case management of the children be transferred to the larger regional CSC, which had considerably more facilities available to it. Later in the year, Mrs B was advised by the larger regional CSC that it had no capacity to accept a transfer of the children.

(7)   During 2012, the behaviour of child A also deteriorated. Mrs B also raised, with the respondent, a number of concerns she had about the childrens' contact arrangements with their birth mother and older siblings. Mrs B said that the children's behaviour appeared to escalate after these contact visits.

(8)   In February 2013, at the request of the respondent, a CAMHS child and adolescent mental health clinician, Ms Lomnicki, provided a letter in support of child B being provided with an allocated support teacher at his local school. In her letter, Ms Lomnicki said that child B's developmental differences were due to his trauma, neglect and attachment disruptions. Ms Lomnicki also highlighted that child B had responded well to his placement with positive and predictable relationships that had provided him with a base to feel validated, protected, supported and understood.

(9)   Regrettably, during 2013, the behaviours of both children continued to escalate at home and at school. Child B was again subject to a number of suspensions from school due to his risk taking and aggressive behaviour. In April 2013, with the applicants, the respondent completed the Child Assessment Tool in preparation for a transfer of the supervision of the placement of the children to Anglican Miyagan Out-of home care.

(10)   In June 2013, Mr B contacted the respondent's helpline to say that child B was having a 'nervous breakdown' and was being verbally and physically abusive. He is reported to have said that child B had tried to strangle his sister on the school bus and that the children always competed for attention and tried to get each other into trouble. When requested by the helpline whether the mental health team was required to be contacted, Mr B said no. Subsequently, Ms Hart met with Mrs B to ascertain what had occurred.

(11)   On 29 June 2013, the helpline received a risk of significant harm report for both children. On this day, the children had birth family contact with their mother and one of their older siblings. The report required a less than 24 hour response, as the allegation concerned an assertion that Mr B had choked child B and had thrown him to the ground. Ms Blackett was on duty and attended the home that day. When she arrived, both children appeared to be happy. The children and Mr and Mrs B were interviewed. Ms Blackett stated that the children said they felt unsafe and wanted to change places, but then very quickly retracted these statements. Ms Blackett went on to state that given child B's speech and behavioural difficulties at the time of the interview it was difficult to ascertain whether he really did feel unsafe. She also stated that given child A's manipulative behaviours, which were evident during the interview, it was difficult to ascertain whether she did feel unsafe, especially as she had retracted her first choice and then chose safe. The following day, Ms Blackett requested that the family be provided with in-house psychological support.

(12)   Ten days later, both children attended a CAMHS appointment. Their behaviour at the appointment was reported as being 'completely out of control'. Due to this behaviour, CAMHS did not proceed with the appointment and said they would not see child A together with child B.

(13)   In July 2013, child B was discharged from the CAMHS. In the discharge summary report, Ms Lomnicki identified two issues; namely 'speech difficulties' and 'behavioural' issues. In regard to the former, Ms Lomnicki, said there should be ongoing consultations with the speech therapist. In regard to the issues concerning 'behaviour', Ms Lomnicki said the plan was for 'supportive and understanding school environment- recognising the calmer classroom resource'. Ms Lomnicki noted that the school, together with the support of Mrs B and Ms Hart (the caseworker) were responsible to give effect to this plan. Ms Lomnicki also noted that birth mother and sibling contact could contribute to the anxiety behaviours of child B.

(14)   During July 2013, Mr B contacted the helpline a number of times, to report the escalating behaviours of the children, especially child B. On one occasion, Mr B told the helpline they were not coping and that he wanted both children removed from the home. However, shortly thereafter, Mr B rang again to say that child B did not want to leave. In the latter part of July, the local CSC, was given approval for Mr Sheppard to provide in-house psychological support to the children and Mr and Mrs B.

(15)   Mr Shepherd met with Mr and Mrs B on 29 August 2013. The following day, he provided an oral report to Ms Hart, the childrens' case worker. In that report, Mr Shepherd is recorded as having said that child B 'did not have a chance in the placement' and advised that both children should be removed, preferably into a placement together. He is also recorded as having advised that he was not going to go ahead with any further in-house psychology with the family. As a result of Mr Shepherd's oral report, Ms Blackett again made a request for an alternative placement be found for the children. Mr and Mrs B were not informed about this. In her affidavit, Ms Blackett acknowledged the attachment the children had to Mr and Mrs B, but went on to say that she had formed the view that sustainability of the placement was very unlikely.

(16)   During September 2013, both children were placed into respite care for a short period of time. In October 2013, Mrs B informed the respondent that the children had been pretty well behaved. However, she noted that child B was having some nightmares, soiling himself and had been a bit anxious and agitated and wanting her attention. The local school also confirmed that both children had been more settled during that term. Nevertheless, concerns were still being raised about the behaviour of the children. In her affidavit Ms Blackett states that in mid October 2013 she informed Mrs B that an alternative placement for child B was being sought so as to be able to assess whether his behaviours differed when he was out of their home. In late October, child B was again suspended from school due to his aggressive behaviour towards a little girl who was transitioning into the school. The respondent was also receiving reports of child A's behaviour escalating.

(17)   On 12 November 2013, in response to a request from the local school, following a further incident of violent behaviour by child B together with reported unsafe behaviour of his sister, child A, both children attended a paediatric appointment. Also in attendance were Ms Hart and Mr B and Mrs B. Both children were reported as being very restless during the appointment. As their behaviours escalated, the paediatrician asked Mrs B to take child B outside while he spoke with Mr B, Ms Hart and child A. The paediatrician confirmed that medication would not change anything. Mr B requested that child B be taken off Lovan so that he was back to only one form of medication. The paediatrician recommended that another psychiatrist be found for child B. He also advised that child B be separated from child A, as child A can behave appropriately, when they are parted. Mr B is reported to have said, during the consultation, that his two daughters could not cope with child B's behaviour anymore and he was concerned about his wife's state of health and how long she could cope with the behaviours. Not long after this, Mr Shepherd provided a report supportive of the children being placed into respite and then increasing their stays until they were completely out of their current placement.

(18)   In early December 2013, the applicants again raised concerns, with the respondent, about the childrens' upcoming contact with their birth mother and older siblings. Mr B, in particular is noted as having raised concerns about the behaviours that child B had displayed on so many previous family contact visits. Not long after raising these concerns, the respondent found a separate respite placement for child A and child B. Ms Blackett informed the applicants about the respite placements and that the respite placement for child B, would be available from 21 December 2013, which was the date on which the children were to have a family contact visit. The applicants objected to child B being placed in respite before Christmas as they wanted to have a family Christmas. After some negotiation, Ms Blackett agreed that child B would go to the respite placement on 27 December 2013.

(19)   During January 2014, child B's respite carer is reported to have informed Ms Hart that child B was really well behaved, but he did get bored quickly. The respite carer is reported to have said that child B appeared to be happy and settled in his daily routine, he had not shown any violence or aggression and they had been shopping without incident. The respite carer is reported as having noted an incident where child B had punched a horse but otherwise his behaviour was improving. The respite carer also reported that child B's medication was being reduced and that by mid-January he was medication free.

(20)   On 29 January 2014 Ms Blackett, and case worker Mrs Steele transferred child B to a new permanent placement. That placement was with a foster carer, authorised by the designated agency, Burnside. It was the evidence of Ms Blackett that she had informed child B, on 24 January 2014, he would not be returning to the home of Mr B and Mrs B. She said that while child B was sad, he appeared to understand and his behaviours were appropriate given the information that had been provided to him about why he was not going back home. Child B showed no signs of anger, violence, denial or aggression towards Ms Blackett or the respite carer. It was the evidence of Ms Blackett that child B had settled well into his new home and his new school. While there have been a few minor behaviour issues nothing major had occurred.

(21)   On 28 February 2014, Mr Shepherd assessed child B at his new school and also with his new carers. We have dealt with this evidence in more detail below.

1. Through their written and oral evidence, Mr B and Mrs B demonstrated a genuine concern about child B and wanted to have him back with them. They described him as their 'son' and their family was incomplete without him. They acknowledged that the behaviours of child B had escalated to an intolerable level by 2013. However, it was their evidence that the behaviours of both children had improved in recent months and that they were coping much better. They also expressed concern about the level of medication that had been prescribed for child B. Mr B said he had expressed the view on a number of occasions that he was concerned that the child B's level of medication was too high and exacerbated the behaviour issues.

1. Mr and Mrs B felt that he and they as a family had been let down by the respondent and the local CSC. They appear to have recognised that a separation of the children at school was worthwhile considering. In this regard they had proposed to the respondent that child B be enrolled at another local school. Regrettably, that school was some distance from their home. Nevertheless, they had received the consent of the principal of that school, who indicated that the school had facilities to deal with the behaviour issues of child B.

1. In her oral evidence, Ms Blackett again acknowledged that child B was very attached to Mrs B. She also acknowledged that this remained a concern and the respondent was intending to ensure that there would be ongoing contact between child B and Mr B and Mrs B and their children.

1. In regard to assisting the family, Ms Blackett said that she and the local CSC had done everything they possibly could do to assist the placement. However, they were limited in the type of assistance they could provide. Regrettably, they did not have the facilities that are available to the much larger CSCs and as they are some distance away from the larger centres these are difficult to source.

1. In her review report of 24 February 2014, Ms Langfield, an independent registered psychologist, noted that child B had a history of interrupted attachments through multiple placements, including a failed restoration to his birth mother. Ms Langfield noted that child B had been removed from the care of Mr B and Mrs B. She went on to say that, in her opinion, the respondent could have more thoroughly explored the impact of the placement disruption, on child B, from Mr B and Mrs B (i.e. given greater consideration to the implication on child B's future development of disrupting his longest period of attachment). Notwithstanding this, as there had in fact been a placement disruption, Ms Langfield expressed the view that to return child B to placement with Mr B and Mrs B may be damaging to his sense of safety and attachment, if in fact he was moving on from his placement with Mr B and Mrs B. Nevertheless, as the placement with Mr B and Mrs B had been the most secure attachment that child B had experienced in his entire life to date, Ms Langfield said more weight and significance should be given to this when making decisions about his long term future. Ms Langfield also said that the provisional opinion of Mr Shepherd needed to be considered.

1. The reported contrast of experience between the 'new' carers and the 'old' carers, Ms Langfield noted as being of significance. However, she went on to note that given the relative newness of the arrangement (i.e. the new placement) this may be evidence of the early stages of a 'honeymoon' period that may only last 3 to 6 months. Ms Langfield concluded her review by making a number of recommendations including, further work be undertaken, by the respondent, with child B in regard to his attachments to Mr B and Mrs B and his older sister, child A. She suggested that Mr Shepherd explore this with child B, over a number of sessions and once this work was completed, an informed decision could be made about child B's long term placement. If child B's attachment remains with Mr B and Mrs B, and this is his preference, and there are supports in place for Mr B and Mrs B then child B should be returned to that placement together with the required supports.

1. In his oral evidence, Mr Shepherd said he agreed that stability was important for any child. He said they need to trust their environment and predict their environment. He said in his recent assessment of child B he saw a different child to the one he had seen previously. He said there did not appear to be any evidence of behaviour issues and he appeared to be happy and very connected to his new school. He said child B appeared to be very involved in his school activities. Mr Shepherd said he was also impressed by child B's teacher, who appeared to be able to deal with child B, who responded very well to her.

Tribunal's Findings

1. As can be seen from the above mentioned sequence of events, child B's placement with the applicants has been difficult at times and appears to have broken down from about June 2013. We did not attribute this to the manner in which the applicants had cared for the child. What was significant was the fact that child B had been removed from the care of the applicants some nine weeks prior to the hearing and the evidence was that he had settled well into his new placement, away from his sister, and at the new school, without displaying any of his previous aggressive behaviours.

1. Our findings, however, are best reflected in our oral reasons given at the conclusion of the hearing. These were in the following terms:

...

Child B and his sister have been in the applicants' care since March 2010. In making its determination the tribunal, as was the respondent, must take into consideration the objects and principles set out in ss 8, 9 and 10 of the Children and young Person (Care and Protection) Act 1989. We have certainly taken those into account. On the evidence that we have heard today, there is no question that Mr B and Mrs B love child B and have at all times wanted the best for him and his sister. It is also evident that at all times they have tried to do their best. We do not think that the respondent disputes this either.

Regrettably, the placement with child B broke down in July of last year through a history of difficult behaviours. There are many reasons for this. What particular reason is attributable for the breakdown is difficult to determine. However, there were issues about medication, child B being given medication which the applicants were certainly not happy with, and there were also issues with the school and issues about the relationship between the two siblings.

The applicants continue to have child A in their care. The evidence of Mr Shepherd, who has actually recently seen child B in his new placement and also at his new school, is indicative of child B being happy where he is. This we realise may be a 'honeymoon' period as noted by Ms Langfield in her report. But it may also be a new start for child B, thanks to the care Mr B and Mrs B have given him. In a sense, they can be proud that they have given him the ability and skills to deal with change. Nevertheless, we must decide, what is the correct and preferred decision? We realise that it is nine weeks that child B has been out of the day to day care of Mr B and Mrs B and that this is a period that could have gone either way. The evidence is that they have gone well. This does not, as we have already said, reflect badly on Mr B and Mrs B, as they realise all too well things can change, and they may change again.

Nevertheless, having regard to all the material before the Tribunal it is our view that the decision of the respondent is the correct and preferred decision and on that basis that decision should be affirmed.

In saying this, we also note that Mr and Mrs B have both said they wish to have an ongoing relationship with child B and we certainly encourage this and that the respondent provides all the support that is necessary for this to occur. As we have said, things can change. On this basis we recommend that the respondent action, as a matter of urgency, the recommendations made by Ms Langfield in her report. These should be actioned as quickly as possible. And not only for child B, but also child A.

1. At the hearing we concluded by making an order that the decision of the respondent be affirmed.

1. We also made the following recommendations, pursuant to subs 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1998:

(a)   The respondent action, as a matter of urgency, each of the recommendations made by Ms Kay Langfield, in her report dated 24 February 2014, and

(b)   Any assessment about the child B's attachments is made by a suitably qualified professional who has had no previous involvement in this matter.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 May 2014